Res-Shurat HaDin

Fact Sheet: Debunking Shurat HaDin's Mis-Understanding of U.S. Law

As the movement to boycott Israel grows, so too have efforts to suppress it. Increasingly, Israel advocates are relying on "lawfare", the use of legal threats to intimidate and silence critics of Israel. Because the U.S. Constitution clearly protects the right to boycott to bring about political, social, and economic change, legal threats often rely on baseless claims and a weak understanding of U.S. law.

In addition to filing many lawsuits aimed at silencing criticism of Israel,[1] Shurat HaDin, an Israel-based law group, regularly threatens baseless lawsuits against individuals and entities in the U.S. that boycott Israel or are affiliated with individuals and groups that support the movement to boycott, divest from, and sanction (BDS) Israel.[2] Shurat HaDin's lawsuit threats generally rely on the following laws to make the claim that boycotting Israel is unlawful in the U.S.:

1. The First Amendment of the U.S. Constitution +

Boycotts have long played a significant role in U.S. history, and the Supreme Court has held that political and human rights boycotts are protected under the First Amendment. In the landmark civil rights case NAACP v. Claiborne Hardware Co.,[3] a local branch of the NAACP boycotted white merchants in Claiborne County, Mississippi to pressure elected officials to adopt racial justice measures. The merchants fought back, suing the NAACP for interference with business. Ultimately, the Supreme Court found that "the boycott clearly involved constitutionally protected activity" through which the NAACP "sought to bring about political, social, and economic change."

The Supreme Court has also held that "speech on public issues" like Israeli policies and Palestinian human rights "occupies the highest rung of the hierarchy of First Amendment values,"[4] and is entitled to special protection. The Constitution is the law of the land and overrules any federal, state, or local laws that conflict with it.

Despite Shurat HaDin's claims to the contrary, the Supreme Court has long recognized, in Claiborne and other decisions, that speech protected by the First Amendment encompasses both verbal communication as well as expressive conduct.[5] Political boycotts of Israel like the NAACP boycott in Claiborne are designed to secure governmental action to address the denial of fundamental rights, and are therefore clearly protected by the First Amendment. If any federal, state, or local law were enacted to prohibit such boycotts, it would face legal challenge and likely be ruled unconstitutional.

2. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) +

Shurat HaDin ironically cites ICERD as a supposed rationale for its legal threats. ICERD does not prohibit BDS in the U.S. because BDS is not discrimination based on race, religion, or national origin. Instead, BDS is a form of political protest targeting Israeli institutions and companies complicit in Israel's human rights abuses, towards the goal of ending discriminatory state policies. A broad range of human rights advocacy groups have accused the Israeli government of gross violations of ICERD,[6] and it is exactly those violations that the proponents of BDS protest.

3. Export Administration Act of 1979 (EAA) +

The EAA, a Congressional initiative in 1979 to counter participation in the Arab League's boycott of Israel, sanctioned corporate participation in a boycott called for by a foreign country.[7] As it only applies to boycotts initiated by foreign countries, it does not apply to boycotts responding to the 2005 call by Palestinian civil society for boycott, divestment, and sanctions (BDS) against Israel until it complies with international law and universal principles of human rights.[8] Further, the EAA does not prohibit political boycotts designed to secure government action to respect fundamental rights; nor could it, as explained above, under core First Amendment principles.

4. Ribicoff Amendment to the Tax Reform Act of 1976 (TRA) +

The TRA is a tax-penalty law that, like the EAA, was intended to counter participation in the Arab League's boycott of Israel.[9] As such, it was also drafted to apply to participation in boycotts in cooperation with a foreign country, and therefore is not applicable to the BDS movement. It does not -- and cannot -- prohibit First Amendment-protected boycotts of Israel that stem from calls initiated by Palestinian civil society.

5. Title VII of the Civil Rights Act of 1964 +

Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin.[10] It is an anti-discrimination statute that has no relevant application to an individual or entity voicing support for a political and human rights boycott of Israel. This statute applies to a situation in which an employer discriminates against an employee by taking adverse employment action. An individual or entity that engages in a politically-motivated boycott is not taking adverse action against its employees.

6. Trade Promotion Authority (TPA) +

Included in the TPA, which President Obama signed into law in June 2015,[11] is a provision that makes it a trade negotiating objective of the U.S. to discourage boycotts of Israel during ongoing trade negotiations with the European Union. There is nothing in the TPA that prohibits individuals or entities from boycotting Israel for its violations of international law, and the TPA does not affect the BDS movement in the US. For a more detailed analysis of the TPA, visit our FAQ here.

7. New York State Human Rights Law (NYSHRL) +

The NYSHRL is a comprehensive anti-discrimination law that includes a provision prohibiting boycotts based on "race, creed, color, national origin, sexual orientation, military status, sex, or disability."[12] This law -- and anti-discrimination laws like it -- do not prohibit political, social, and economic boycotts of Israel for two reasons. First, these boycotts are because of Israeli human rights abuses, and not because of a "protected class" like national origin. And second, boycotts to bring about political, social, and economic change, as mentioned above, are protected by the First Amendment, and therefore cannot be prohibited by the NYSHRL. For a more detailed overview of the NYSHRL, visit our FAQ
here
.

The NLRA is a federal law that safeguards employees' rights to organize and regulates unfair labor practices.[13] The NLRA prohibits labor organizations from engaging in Òsecondary boycotts.[14] In other words, a union that represents workers at Company A cannot boycott Company B to pressure Company B into influencing Company A's actions. Such secondary boycotts are considered an unfair labor practice. The prohibition on secondary boycotts as an organizing tactic, however, has no effect on a union's right to endorse social justice movements -- like the BDS movement.

For a response to other common claims about BDS, see our FAQ: Illegality of BDS.

While legal threats against Palestine human rights activists often rely on weak legal arguments, it is important to keep in mind that meritless lawsuits are always a possibility, and that legal bullying is one of the many tactics Israel advocates use to silence Palestinian human rights activists. If you have specific concerns about legal threats and lawsuits, please contact Palestine Legal at
www.info@palestinelegal.org.
. For more information, visit
www.palestinelegal.org.

This document contains general legal information, not specific legal advice. Do not rely on these materials without first seeking the advice of an attorney regarding your particular situation and facts. Only a licensed attorney, reviewing your individual facts, may render legal advice. This information is provided as a public resource for information purposes only. Nothing in this resource should be taken to create an attorney-client relationship between you and Palestine Legal.